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NS and Women's Equality

Friday, January 4, 2013

By Professor Natasha Bakht, University of Ottawa Faculty of Law

The long-awaited decision in R v NS, 2012 SCC 72 was released by the Supreme Court of Canada on December 20th, 2012.The case examines whether a devout Muslim woman sexual assault complainant, who wears a niqab or full-face veil publicly, could wear her niqab while testifying in courtThis case is essentially about the prosecution and adjudication of the offence of sexual assault, which has historically and contemporaneously been fraught with racism and misogyny.It is significant for women’s equality as it places at the forefront women who are marginalized in our society, women who we prefer not to see and whom we thus, learn little about.

The majority’s decision in NS while keeping the door open for Muslim women to wear the niqab while testifying in certain situations, did not adequately consider NS’s equality or section 7 rights.Indeed the word equality never appears in the decision! To frame NS’s claim as only rooted in religious freedom is to fundamentally misconstrue the intersectional nature of the issue at stake.NS is a sexual assault complainant.Asking a niqab-wearing woman to remove her veil is like asking her to remove her skirt or blouse in court. It is, literally, to strip her publicly and in front of her alleged perpetrators. We know that sexual assault is one of the most underreported crimes in Canada.Prohibitions on wearing the niqab while giving testimony will only discourage Muslim women from participating in the justice system.

While the majority decision rightly states that Canada’s traditions do not involve leaving one’s religious convictions at the courtroom door, it unfortunately goes on to state that where a niqab-wearing witness’ testimony is contested, which it naturally would be in the context of a sexual assault, the balance must weigh heavily in favour of the woman removing her niqab.

Perhaps unsurprisingly, the entire court is unwilling to reject the long-standing common law assumption of the importance of seeing a witness’ facial expressions to credibility assessment.Given that our society struggles with systemic racism and sexism among other oppressions, the fact that certain people appear less trustworthy than others is cause to be cautious in our reliance on demeanour evidence. Despite the numerous warnings regarding the unreliability of demeanour evidence in social science literature and case law, the majority found the record insufficient because it was not tendered through an expert available for cross-examination.

The net result of the NS decision is that trial judges will continue to have discretion to require a niqab-wearing woman to remove her veil, even in the unique circumstances of a sexual assault trial.Although trial courts now have a clearer analytical framework to structure their reasoning on this point, it will be impossible for a niqab-wearing woman to predict in advance whether the decision to seek justice will require her to remove a garment that has both religious and psychological significance to her.In the sexual assault context, one can only expect this to result in further under-reporting.

The outcome, of course, could have been much worse, as the decision by Justice LeBel demonstrates.He would have preferred a clear rule that never allows a woman to wear a niqab because according to him, “it removes the witness” (at para 77) from the process of communication. It is unclear to me how removing niqab-wearing women from court processes altogether, which would be the result of his rule, facilitates the principle of openness of the trial process that he advocates.

Justice Abella’s dissenting decision would have allowed niqab-wearing women to testify in courtrooms in all situations except in cases where the accused demonstrates that the witness’ face is directly relevant to the case, such as where her identity is in issue.She would have treated niqab-wearing women no differently from other witnesses whose demeanour is partially affected by medical or other impediments.In my view, Justice Abella’s approach was the right one.As she states at para 96:

The majority’s conclusion that being unable to see the witness’ face is acceptable from a fair trial perspective…essentially means that sexual assault complainants...will be forced to choose between laying a complaint and wearing a niqab, which...may be no meaningful choice at all.